Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into politics, military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting.

28 June 2007

Waiting for Roberts

Today is (almost certainly) the last day of the Supreme Court's term, with no further sittings scheduled (although that may change, and we'll know in about an hour). I've been particularly distressed by a lot of the decisions this term. Although the IP-oriented decisions weren't bad (except, in one instance, in having to be issued at all), much of the remainder has been inexcusably ideological in basis. I won't try to pretend that ideology never enters into judicial opinions, which are after all just writing; as Orwell wisely noted (and I'm paraphrasing slightly to emphasize one aspect), all writing is political... and the decision to take overt politics out of a piece of writing is itself a political decision. However, there has been a disturbing trend toward doublethink in some of the more-controversial opinions.

If I had to choose a theme for this term, though, it would not be political per se; it would instead concern separation of powers. The judicial power includes  necessarily  the power to find the facts that apply to particular disputes that are properly before a court. In at least six opinions this term, the Supreme Court has instead deferred to another branch's "version" of factfinding as it applies to a particular dispute. I'm not saying that legislation and executive action should ignore factual foundations; I certainly hope that there is a factual foundation for any statute or administrative action! Instead, I'm saying that one cannot give statements of fact from other branches of government a free pass, because it's the judiciary's inherent job to be the arbiter of facts in particular cases. Even the "substantial evidence" rule that applies to judicial review of administrative decisions provides a check on improper factfinding by nonfactfinding branches  just look at the Seventh Circuit's reviews of immigration decisions over the last few years! One can certainly argue that it's not a sufficient review, but the problem is that now we're talking about balance. On the other hand, the way the Court treated the Congressional "factfinding" in Carhart, and the school administration's "factfinding" in Morse, reflects complete abrogation of its duties to inquire.

That is bad for the rule of law. Keep in mind that the "rule of law" is ultimately a liberal value, and ultimately has liberal consequences, and you'll begin to understand why I so strongly support it. The alternative(s) to rule of law all eventually boil down to rule of might, an inherently conservative (and even reactionary) system, whether that might is economic, military, or theocratic.

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Blog Archive

Warped Weft

Now live at the new site. I have arranged some of the more infamous threads that have appeared here by unravelling them from the blawg tapestry (and hopefully eliminating some of the sillier typos). Sometimes, the threads have been slightly reordered for clarity.

Other Blawgs, Blogs, and Journals

These may be of interest; I do not necessarily agree with opinions expressed in them, although the reasoning and writing are almost always first-rate (and represent a standard seldom, if ever, achieved in "mainstream" journalism). I'm picky, and have eclectic tastes, so don't expect a comprehensive listing.

How Appealing is aimed at appellate lawyers and legal news in general. If you care about the state of the law, start here — Howard's commentary is far better balanced, better informed, and better considered than any of the media outlets. To concentrate on the US Supreme Court, don't forget SCOTUSBlog.

Some academics' blawgs with a variety of political (and doctrinal) viewpoints:

The main European IP blawg of interest remains the UK-based IPKat, on a variety of intellectual property issues, with some overlap (with a less Eurocentric view) at IPFinance

The American Constitution Society blawg is a purportedly "liberal" counterweight to the so-called "Federalist Society" (which, despite its claims, should be called "Tory Society") that has yet to establish much coherence... but maybe that's all to the good.

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